The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant the City of New York has moved to vacate the "Judgment
Under Fed.R.Civ.P. 68," signed by this Court on April 14, 2004. For
the reasons set forth below, the motion is granted.
On March 9, 2004, the defendant served on plaintiff Shawn Harris
("Harris") an Offer of Judgment pursuant to Fed.R.Civ.P. 68, allowing
Harris to take judgment against it for the sum of $15,001.00, together
with reasonable costs and attorneys' fees accrued to that date. While
both parties are in agreement that the offer was accepted by Harris on
March 15, 2004, the Offer of Judgment was never filed.
On March 24, 2004, Harris served on the defendant a "Notice of
Settlement of Proposed Judgment and Judgment Under Fed.R.Civ.P. 68."
That Notice was also not filed with the Court. Before the defendant was aware that the Notice was not filed
with the Court, defendant requested until April 1, 2004 to review the
proposed judgment and make objections, if necessary. When defendant was
told by plaintiff that the Notice had not been filed with the Court, the
request for more time was withdrawn.
On April 12, 2004, Harris filed a "Judgment Under Fed. Civ. P. 68" with
the clerk of court. Neither Harris nor the defendant has stated that
notice of the judgment was given to the defendant. The judgment was
signed by the court on April 14, 2004.
After receiving notice that the judgment had been signed, the defendant
wrote to the Court on April 16, 2004, requesting that the judgment be
vacated because the judgment signed by the Court did not mirror the
Rule 68 offer of judgment. After an exchange of letters, argument was heard on
the motion on May 19, 2004, at which time the motion was deemed fully
Although the defendant did not denominate its request under a
particular Federal Rule of Civil Procedure, it will be deemed a motion
pursuant to Rule 60(b). Federal Rule of Civil Procedure 68 provides, in relevant part:
If within 10 days after the service of the offer
the adverse party serves written notice that the
offer is accepted, either party may then file the
offer and notice of acceptance together with proof
of service thereof and thereupon the clerk shall
In this case, the procedure specified by Rule 68 was not followed
by either plaintiff or defendant, because "the offer and notice of
acceptance" were never filed with the court. While the phrase "either
party may then file," might appear to make filing after acceptance
optional, Rule 6 must be read in conjunction with Rule 5(d), which
requires that "[a]11 papers after the complaint required to be served
upon a party . . . must be filed with the court within a reasonable
time after service."*fn1
Harris argues that he followed the procedure specified under Local
Rule 77.1(a), which permits other parties three days to offer a
counter-proposal of judgment. However, Local Rule 77.1 is not applicable
in the Rule 68 context because according to the plain language of
Rule 68, the actual offer is to be filed, together with notice of acceptance, and judgment may be
entered by the clerk based only on those documents. Similarly, it was
improper for the defendant to make objections to Harris's proposed
judgment, rather than filing the actual offer.
The purpose of Rule 68 "is to provide an efficient and neutral means to
settle litigation, irrespective of the nature of the underlying
disputes." Marryshow v. Flynn, 986 F.2d 689, 698 (4th Cir.
1993); see also Marek v Chesny, 473 U.S. 1,
5 (1985) ("The plain purpose of Rule 68 is to encourage settlement and
avoid litigation."). If, following the acceptance of a Rule 68 offer,
both parties were to engage in the process of serving proposals and
counter-proposals prior to entry of judgment, the purposes of the rule
would be undermined.
Because the post-acceptance procedure specified by Rule 68 was not
followed, the judgment signed on April 14, 2004 is vacated. The parties
are directed, pursuant to Rule 68, to file within ten (10) days the offer
and notice of acceptance together with proof of service thereof. Any
application for attorneys' fees by plaintiff may not be made until the
judgment has been entered.